The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT; (2) GRANTING PLAINTIFF LEAVE TO AMEND; AND (3) VACATING HEARING
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS Defendant Hawaii State Judiciary, Department of Human Resources' ("Defendant") Motion to Dismiss (Doc. # 38), and VACATES the Hearing on this matter set for March 19, 2012.
Plaintiff Norman Siales ("Plaintiff") is a citizen of Pohnpei, Micronesia. ("FAC," Doc. # 17 ¶ 5.) According to Plaintiff, on January 12, 2009, he began doing volunteer clerical work for Defendant. (Id. ¶ 12.) On January 28, 2009, Defendant denied his application for a court clerk position. (Id.) On August 11, 2009, Plaintiff reapplied for the same position and was again denied. (Id.) On January 31, 2010, Plaintiff filed a Charge of Discrimination with the Hawaii Civil Rights Commission ("HCRC"), alleging that Defendant did not hire him for the clerk position because of his national origin. (Doc. # 34-10.) According to Plaintiff, the HCRC and the Equal Employment Opportunity Commission ("EEOC") concluded that "they . . . couldn't find sufficient evidence in substantiating my employment discrimination claim." (FAC ¶ 16.)
On May 5, 2011, Plaintiff filed a Complaint ("original Complaint") against Defendant, alleging employment discrimination. (Doc. # 1.) Plaintiff alleged, among other things, that Defendant discriminated against him by failing to hire him for a clerical position because of his national origin. (Id. at 1--2.)
On August 10, 2011, Plaintiff filed a second Complaint, entitled "Complaint for Declaratory and Injunctive Relief." (FAC, Doc. # 17.) On September 6, 2011, Defendant filed its Answer to Plaintiff's original Complaint. (Doc. # 21.) On September 30, 2011, Defendant filed a Motion to Strike the second complaint. (Doc. # 31.)
On September 23, 2011, Plaintiff filed a Motion for a Preliminary Injunction, "Supplemental Memorandum for the Preliminary Injunctive Relief Motion Ref: Retaliatory/Employment Discriminations" ("Injunction Motion"). ("Inj. Mot.," Doc. # 28.) On December 20, 2011, Defendant filed a Memorandum in Opposition to Plaintiff's Injunction Motion. ("Opp'n," Doc. # 34.) On January 13, 2012, Plaintiff filed a Response to Defendant's Motion to Strike and Defendant's Opposition. (Doc. # 35.) On January 24, 2012, this Court issued an Order Denying Defendant's Motion to Strike and Denying Plaintiff's Injunction Motion. ("Order," Doc. # 37.)
On January 30, 2012, Defendant filed a Motion to Dismiss the FAC ("Motion to Dismiss"). ("Mot.," Doc. # 38.)
On March 9, 2012, Plaintiff filed a "Pre-Trial Statement" (Doc. # 43) and a "Proposed Draft Response to Prestige Court's Recent Findings" (Doc. # 44).
I. Federal Rule of Civil Procedure 12(b)(1)
Pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. In a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the initial burden of proving that subject matter jurisdiction exists. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Rattlesnake Coal. v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1102 n. 1 (9th Cir. 2007). "In considering the jurisdiction questions, it should be remembered that 'it is a fundamental principle that federal courts are courts of limited jurisdiction.'" Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Upon a motion to dismiss, a party may make a jurisdictional attack that is either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack occurs when the movant "asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. By contrast, a factual attack occurs when the movant "disputes the truth of the allegations, that by themselves, would otherwise invoke federal jurisdiction." Id.
If the movant makes a factual attack on jurisdiction, the court may review evidence beyond the complaint. Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003). In resolving an attack on the facts, however, a court may weigh evidence to determine whether it has jurisdiction, as long as the jurisdictional facts are not intertwined with the merits. Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Kingman Reef Atoll Investments, LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008) (internal quotation marks and citation omitted). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage, 343 F.3d at 1039 n. 2.
II. Federal Rule of Civil Procedure 12(b)(6)
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Review is limited to the contents of the complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994).
A complaint may be dismissed as a matter of law for one of two reasons: "(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556--57; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.") (citation omitted). "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (internal quotations and citations omitted). Thus, "bare assertions amounting to nothing more than a formulaic recitation of the elements" of a claim "are not entitled to an assumption of truth." Moss v. ...